Embassy Magazine – July 13, 2011
Anca Gurzu

By the time Canada’s reformed refugee legislation kicks in next year, tens of thousands of refugee claimants will still be waiting for a hearing—and the Immigration and Refugee Board says it won’t have the resources to deal with these leftover files. Experts say this development counters the purpose of streamlining the new system and may also undermine its effectiveness. They worry genuine refugees will be placed in an indefinite and unbearable wait, while unfounded claimants will continue to exploit their stay longer.

The IRB’s report on plans and priorities for 2011-2012, released in June, highlights several transformative steps officials will take to accommodate the changes of the new reform legislation, which Parliament passed in June 2010 in an attempt to make Canada’s refugee system faster and more efficient. Among other things, the IRB will add another body to its structure, the Refugee Appeal Division, something critics had long been calling for. It will also see claimants coming from socalled designated “safe countries” being expedited through the system, under the assumption that they come from a country without a real risk for persecution.

But the transition to the new system may pose great challenges for the tens of thousands of refugee claimants that form a substantial backlog, which resulted from several years of unfilled vacancies to the board. Most vacancies have now been filled and the IRB even received additional funding for 2010-2011 for a backlog reduction project that will continue until next year. The Refugee Protection Division hired 12 additional board members in 2010 to help deal with the backlog, and they will stay on until the new system kicks in—which is no later than June 29, 2012, according to the board’s plans. Still, the IRB says that won’t be enough. At the end of December, there were about 51,000 refugee protection claims waiting to be heard, according to the plans and priorities document, and the IRB says there will be about 41,500 cases waiting by the time the new system kicks in. This means that while there will be more finalized cases than referrals by next year, the “IRB will have a significant number of ‘legacy’ cases in the inventory when the [new law] comes into force” the document states. “The IRB will not have the resources to resolve these cases under the new regime.” The new Refugee Appeal Division will be mainly funded from an internal allocation of existing financial resources from the Refugee Protection program.

New system, old rules

While the IRB report does not clearly spell out what will happen to the backlogged cases, it notes that “this accumulated inventory is well beyond the Division’s capacity to address within existing resource levels.” Despite the IRB itself raising concerns about the backlog, spokesperson Melissa Anderson wrote in an email that the board is working with the government to address the issue. In theory, when the new system kicks in, all refugee cases in the backlog will be subject to changes. For instance, claimants whose cases have been heard under the old system but who are still waiting for a final decision will have the right to appeal under the new system, according to information on Citizenship and Immigration Canada’s website. However, immigration lawyer Max Berger said there is no doubt new cases will take precedence over old ones because the new law lays out specific time frames for hearings. Under the reformed system, officials will have a maximum of 60 days to decide on the validity of claimants from countries deemed as “safe,” and 90 days for regular claimants. Decisions on refugee appeals must be made within 30 days for claimants from “safe” countries, and within 120 days for the rest. Claimants who are still waiting for their turn in the backlog will have their cases heard by public servants as part of the new Refugee Protection Division, but the above timelines do not apply. Former IRB chairman Peter Showler said this means that many of the claims— which by the time the new legislation enters into force will have been in the queue for over 20 months— will have to wait even longer while the new ones are being processed. “For valid claimants with family waiting, it will be excruciating and silent,” he said in an email. Mr. Berger said placing the backlog on the backburner will create a problem that will endure for many years.

“The whole point of the [refugee reform act] is to streamline the system and get results quicker,” he said. “If there is a significant back-og that they cannot probably deal with, then it defeats the purpose of the new act.” Mr. Berger also said that while that the increased waiting period will be bad news for those who will prove to be genuine refugees, it will be good news for those aiming to exploit the system.

“Anyone with a fabricated story will want to extend their stay as long as possible,” he said. “They will be thrilled. This plays into the hands of non-genuine claimants that [Immigration Minister Jason Kenney] wants to keep out.” Furthermore, an increased waiting period also means the fading of claimants’ memory, which is crucial in the oral evidence part of the hearing, Mr. Berger said.

“When that happens, you don’t get such an accurate recounting of the evidence and you don’t get a proper refugee hearing, which may be to the detriment of the claimant,” he said. Like Mr. Berger, Sharryn Aiken, associate dean at Queen’s University’s law school and an expert in refugee law, said the situation is ironic, considering that one of the main purposes of reforming the system was the lingering backlog. “The cynical side of me would suggest the Conservative government is intent to have a system destined to fail,” she said. “There is a real lack of political will to ensure that the board has the resources to work.”

Both Mr. Berger and Ms. Aiken said the solution would be to contract additional board members to handle the pending cases. Even an extra 10 members would make a significant dent in reducing the backlog, Mr. Berger said.